Dr. Slamet Tri Wahyudi, S.H., M.H. - PENGANTAR HUKUM INDONESIA

Summary

In this lecture, Dr. Slamet Wahyudi, a professor of Indonesian Law, introduces the foundational aspects of Indonesian legal studies. He covers the importance of understanding the basics of law before delving into specific fields like criminal, civil, or international law. The discussion touches on the differences between 'ius constituendum' (aspired law) and 'ius constitutum' (positive law), the historical impact of Dutch colonialism on Indonesian law, and key legal principles. The lecture also explores sources of formal law, including legislation, jurisprudence, treaties, customs, and legal doctrines.

Takeaways

• 📚 The lecture is an introduction to Indonesian law, explaining its fundamental concepts and significance.
• 🔍 Indonesian law encompasses various fields such as criminal law, civil law, constitutional law, and customary law.
• 📜 The concept of *ius constituendum* refers to the ideal law that is aspired to, while *ius constitutum* is the law currently in effect.
• 🗺️ Historical context: During Dutch colonial rule, the legal system in Indonesia was influenced by Dutch law, with a focus on aligning colonial laws with those of the colonizer.
• ⚖️ There is a pluralism in Indonesian civil law due to the diverse ethnic groups, resulting in different legal systems for inheritance, such as Islamic law, civil law, and customary law.
• 🏛️ Sources of formal law in Indonesia include legislation, jurisprudence, treaties, customary practices, and legal doctrines.
• 📖 Legal doctrines like progressive law argue for a dynamic interpretation of law, focusing on fairness and public welfare rather than just strict legal rules.
• 🏛️ The principle of *lex superior derogat legi inferiori* means higher-level laws override lower-level ones; this is important in the hierarchy of Indonesian legal norms.
• 🔍 The principle of *lex specialis derogat legi generali* indicates that specific laws take precedence over general laws, relevant in cases such as online gambling regulations.
• 📅 The principle of *lex posterior derogat legi priori* means newer laws override older ones unless the older laws are explicitly retained.

Q & A

What is the primary purpose of studying 'Pengantar Hukum Indonesia' (Introduction to Indonesian Law)?

'Pengantar Hukum Indonesia' serves to explain and instill the foundational principles of Indonesian law, providing an understanding of positive law in Indonesia, such as criminal law, civil law, and constitutional law.

What is the difference between 'Ius Constituendum' and 'Ius Constitutum' in the context of Indonesian law?

'Ius Constituendum' refers to the law that is aspired to be implemented in the future, while 'Ius Constitutum' pertains to the positive law that is currently in effect in Indonesia, such as civil law, criminal law, and customary law.

How did colonial influence shape the legal system in Indonesia during the Dutch colonial period?

During the Dutch colonial period, the legal system in Indonesia was influenced by the principle of 'condensasi,' where laws in the colonies were made to align with the legal regulations of the colonizing country, in this case, the Netherlands. This included laws like criminal law, civil law, and commercial law.

Why is there a pluralism in Indonesian civil law, particularly regarding inheritance law?

Indonesian civil law is pluralistic because of the diverse cultural and religious practices in the country. For instance, inheritance law can vary based on the individual's preference for Islamic law, customary law, or civil law, depending on their background and beliefs.

What is 'yurisprudensi,' and how does it function in the Indonesian legal system?

'Yurisprudensi' refers to judicial decisions that are followed and used as a basis for future court rulings. In Indonesia, an example is the West Jakarta court decision allowing a gender change from male to female, which has since been followed by other judges.

What are 'traktat,' and how do they influence Indonesian law?

'Traktat' are treaties or agreements between countries, either bilateral or multilateral. They influence Indonesian law by establishing legal obligations between nations, such as the treaty between Indonesia and the United States regarding PT Freeport or extradition agreements between Indonesia and Malaysia.

What role does customary law play in the Indonesian legal system?

Customary law in Indonesia consists of practices and traditions that have been accepted by society and can be considered as legal norms, even if not written. These customs can become recognized as law if they are widely accepted and practiced over time.

What is the significance of the principle 'Lex Superior Derogat Legi Inferiori' in Indonesian law?

The principle 'Lex Superior Derogat Legi Inferiori' means that higher-ranking laws override lower-ranking laws. For example, a local regulation (Perda) cannot contradict or override national laws or the constitution.

How does the principle 'Lex Specialis Derogat Legi Generali' apply in Indonesian law?

The principle 'Lex Specialis Derogat Legi Generali' states that specific laws take precedence over general laws. For example, specific laws on online gambling would take precedence over the more general criminal code in cases involving online gambling.

What is the impact of the principle 'Lex Posterior Derogat Legi Priori' on the application of laws in Indonesia?

The principle 'Lex Posterior Derogat Legi Priori' implies that newer laws override older ones unless the older law is explicitly retained. This ensures that legal regulations remain relevant to current circumstances.